Birth control is legal under MO’s abortion ban. Why are some hospitals wary of legal risk?

·7 min read

The Supreme Court decision to overturn Roe v. Wade and the swift enactment of Missouri’s trigger ban has outlawed nearly all abortions in the state. Now, some Missourians are concerned that other forms of reproductive health care, like birth control, Plan B and in-vitro fertilization, could also be in jeopardy. Some have expressed fear on social media or reached out to The Star directly with questions.

Missouri’s trigger ban doesn’t explicitly mention these family planning measures, and the general counsel for Planned Parenthood of the St. Louis region told The Star that they aren’t in immediate danger. Since this story was first published, Missouri Republican Gov. Mike Parson and the Missouri Department of Health and Senior Services have assured that Missouri law does not ban birth control, even after Roe was overturned.

Confusion about the trigger law’s effects led one Kansas City area hospital group, Saint Luke’s, to briefly stop providing Plan B due to potential legal risk. The hospital system later reversed its decision.

Currently, clinics and hospitals around Kansas City are still prescribing birth control to patients, and Plan B is still available on store shelves.

Ultimately, the decision on how to interpret and enforce the state’s abortion ban will fall to prosecutors like the attorney general and local county prosecutors. Any controversial interpretations could face a legal challenge and end up in the courts. Right now, the U.S. Constitution protects the right to birth control because of a case called Griswold v. Connecticut.

On Wednesday, state Attorney General Eric Schmitt’s office asserted that Missouri law does not outlaw birth control.

“Missouri law does not prohibit the use or provision of Plan B, or contraception,” said Chris Nuelle, spokesperson for Schmitt.

To better understand where some of the concern around family planning is coming from, The Star interviewed two Missouri lawyers.

One, who used to be an assistant prosecutor, interprets the law in a way that makes him concerned about how prosecutors could try to criminalize birth control.

The other lawyer is the general counsel for Planned Parenthood of the St. Louis Region (PPSLR) who maintains that birth control is still legal in Missouri under the abortion ban. Planned Parenthood has sued Missouri in the past to uphold reproductive rights that are protected in state law.

Why the legal definition of “pregnancy” could affect birth control in Missouri

Joe Bednar worked as the Jackson County Assistant Prosecutor between 1986 and 1992, and was former Missouri Democratic Gov. Mel Carnahan’s chief legal counsel in the 1990s. He was a colleague of former Missouri Democratic Sen. Claire McCaskill, who has been speaking publicly about the trigger ban potentially criminalizing birth control in the state, which a spokesperson from Planned Parenthood described to The Star as “rumors.”

In Bednar’s view, Missouri’s legislature has been slowly changing the state’s laws around abortion ever since Roe v. Wade was decided in 1973. Roe protected the federal right to an abortion until a fetus was viable. Bednar believes that overturning that landmark decision means a fetus’s “viability” is longer the factor that determines whether an abortion is legal or illegal.

Without that legal threshold, Bednar thinks the question of when a “pregnancy” technically begins will decide what counts as an abortion, and therefore what can be treated as a crime. And he thinks that Missouri’s definition of “pregnancy” is broad enough that some forms of birth control and family planning have the potential to be criminalized.

The state’s health department provided a statement saying that even after the Roe decision, Missouri law does not ban birth control.

“Every prosecutor gets to decide whether or not they charge a person with a crime,” Bednar told The Star. “I’m not predicting everybody’s going to get charged, but I’m saying this law creates the opportunity for that to happen.”

Missouri currently defines “abortion” in part as “the intentional termination of the pregnancy… with an intention other than to increase the probability of a live birth or to remove a dead unborn child.”

Bednar argues a that a long-standing Missouri abortion statute measures pregnancy “from the first day of the woman’s last menstrual period.” He said that under this definition, “pregnancy” in Missouri can be interpreted to begin when a person’s period starts, which could be before a person has even had sex.

This broad definition, Bednar said, could potentially give a prosecutor a legal opening to charge someone with unlawful abortion if they use some forms of birth control, Plan B or embryo removal during IVF. That’s because these family planning measures would technically “terminate” a hypothetical “pregnancy” by preventing it in the first place instead of “increas[ing] the probability of a live birth.”

In simple terms: Bednar thinks that an aggressive prosecutor could argue that some forms of family planning count as abortions because they “are used with an intention other than to increase the probability of a live birth,” under the state’s definition of pregnancy, which he says could begin the first day of the woman’s last menstrual period.

Planned Parenthood lawyer asserts birth control is legal under abortion ban

Richard Muniz works as the general counsel for Planned Parenthood of the Saint Louis Region (PPSLR). He told The Star that Missouri law does not equate birth control, Plan B or fertility treatments to abortion, and the state has never defined these family planning measures as abortions.

“The legislature uses the term ‘pregnancy’ to mean an intrauterine pregnancy,” Muniz said. “It should be clear to prosecutors that if they were to think of a new way of defining abortion, they’re really acting outside the law.”

Muniz also pointed out that Missouri already restricts abortion in many ways. That means that if the state considered birth control and other treatments to be abortions, they would already be severely regulated under state law.

“The state has set up this entire regulatory system around how abortions can be done [and] who can do them,” Muniz added. These regulations include mandatory waiting periods, strict rules about the types of facilities abortions can be performed in, and stringent qualifications for the healthcare providers who perform them.

“Clearly, those regulations do not apply today to birth control,” Muniz said.

Finally, Muniz noted that the Supreme Court case Griswold v. Connecticut still protects the right to birth control at the federal level. Unless this ruling is overturned too, he said any prosecutor going after birth control access would be challenging the Constitution itself.

This doesn’t mean that a charge of “unlawful abortion” for using these treatments could never happen—but it’s unlikely that a prosecutor would pursue charges. If they did, the charges would quickly face legal challenges and the prosecutor would have to defend them in court. The decision on whether the prosecutor’s reading of the law is reasonable would then fall to Missouri and possibly federal judges.

There’s a lot we still don’t know about the trigger ban’s effects

We have yet to see exactly how Missouri prosecutors, including the state attorney general and local county prosecutors, will enforce the trigger ban over time. At least one of them has already indicated that she doesn’t plan to prosecute abortions. And on Wednesday, the attorney general’s office confirmed that birth control is not banned under Missouri law.

We also don’t know exactly how the trigger ban will impact people who end their pregnancies on their own. While the law specifies that abortion providers will be liable rather than abortion recipients, it’s unclear how prosecutors will treat people who act as their own abortion provider using medication.

Finally, we don’t yet know how doctors and prescribers may change their behavior under the trigger ban. Even if Missouri does not explicitly ban family planning treatments, some people like Bednar say the possibility of prosecution may cause some healthcare providers to stop administering these treatments.

This happened already: Some local hospitals told The Star they are going through a process of legal review to see how the trigger ban on abortions will impact all of their reproductive health care. One health system—Saint Luke’s—briefly stopped prescribing emergency contraceptives altogether, and then reversed its decision.

We’ll keep reporting on this issue as we speak with healthcare providers around the metro. For now, birth control, including Plan B, remains legal and available in the state of Missouri.

The Star’s Jonathan Shorman and Kacen Bayless contributed reporting.

Do you have more questions about abortion access in and around Kansas City? Ask the Service Journalism team at kcq@kcstar.com.

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